[ULPIANUS libro uicensimo octaouo ad edictum. ] §14.3.11.prSed si pupillus heres extiterit ei qui praeposuerat, aequissimum erit pupillum teneri, quamdiu praepositus manet: remouendus enim fuit a tutoribus, si nollent opera eius uti.
[ULPIANUS from the twenty-eighth book on the Edict.] But if a ward becomes the heir of one who had appointed a manager, it will be most equitable for the ward to be held liable as long as the appointed person remains in office; for he ought to have been removed by the tutors, if they did not wish to make use of his services.
§14.3.11.1Sed et si minor uiginti quinque annis erit qui praeposuit, auxilio aetatis utetur non sine causae cognitione.
But also, if the person who made the appointment is under twenty-five years of age, he will enjoy the benefit of age, though not without an investigation of the cause.
§14.3.11.2De quo palam proscriptum fuerit, ne cum eo contrahatur, is praepositi loco non habetur: non enim permittendum erit cum institore contrahere, sed si quis nolit contrahi, prohibeat: ceterum qui praeposuit tenebitur ipsa praepositione.
If it has been publicly posted concerning someone that contracts are not to be made with him, he is not considered to be in the position of an appointed manager; for contract with a manager should not normally be permitted, but if anyone does not wish such contracts to be made, he should forbid them; otherwise, the person who made the appointment will be held liable by the appointment itself.
§14.3.11.3Proscribere palam sic accipimus claris litteris, unde de plano recte legi possit, ante tabernam scilicet uel ante eum locum in quo negotiatio exercetur, non in loco remoto, sed in euidenti.
By "posting publicly" we mean in clear letters so that they can easily be read from the ground level, naturally in front of the shop or in front of the place where the business is conducted, not in a secluded spot, but in an obvious one.
litteris utrum Graecis an Latinis? puto secundum loci condicionem, ne quis causari possit ignorantiam litterarum.
In what letters, Greek or Latin? I think according to the condition of the place, so that no one can plead ignorance of the letters.
certe si quis dicat ignorasse se litteras uel non obseruasse quod propositum erat, cum multi legerent cumque palam esset propositum, non audietur.
Certainly, if anyone should say that he did not know the letters or did not notice what had been posted, while many others read it and it was publicly posted, he will not be heard.
§14.3.11.4Proscriptum autem perpetuo esse oportet: ceterum si per id temporis, quo propositum non erat, uel obscurata proscriptione contractum sit, institoria locum habebit.
Furthermore, the notice must be posted continuously; indeed, if a contract is entered into during a period when it was not posted, or when the notice had become obscured, the institorian action will lie.
proinde si dominus quidem mercis proscripsisset, alius autem sustulit aut uetustate uel pluuia uel quo simili contingit, ne proscriptum esset uel non pareret, dicendum eum qui praeposuit teneri.
Hence, if the owner of the goods had indeed posted it, but someone else removed it, or by reason of age, rain, or some similar occurrence, it happened that it was not posted or was not visible, it must be said that the person who appointed him is liable.
sed si ipse institor decipiendi mei causa detraxit, dolus ipsius praeponenti nocere debet, nisi particeps doli fuerit qui contraxit.
But if the manager himself removed it for the purpose of deceiving me, his fraud must harm the one who appointed him, unless the person who contracted was a party to the fraud.
§14.3.11.5Condicio autem praepositionis seruanda est: quid enim si certa lege uel interuentu cuiusdam personae uel sub pignore uoluit cum eo contrahi uel ad certam rem? aequissimum erit id seruari, in quo praepositus est.
Moreover, the condition of the appointment must be observed: for what if he wished contracts to be made with him under a certain condition, or through the intervention of a certain person, or under a pledge, or for a specific transaction? It will be most equitable for that within which he was appointed to be observed.
item si plures habuit institores, uel cum omnibus simul contrahi uoluit uel cum uno solo.
Likewise, if he had several managers, and wished contracts to be made with all of them together, or with only one of them.
sed et si denuntiauit cui, ne cum eo contraheret, non debet institoria teneri: nam et certam personam possumus prohibere contrahere uel certum genus hominum uel negotiatorum, uel certis hominibus permittere.
But also, if he formally notified someone not to contract with him, he ought not to be held liable to the institorian action; for we can forbid a specific person, or a specific class of persons or businessmen, from contracting, or permit only specific persons to do so.
sed si alias cum alio contrahi uetuit continua uariatione, danda est omnibus aduersus eum actio: neque enim decipi debent contrahentes.
But if, by constant variation, he forbade contracting now with one, now with another, an action against him must be granted to everyone; for contracting parties ought not to be deceived.
§14.3.11.6Sed si in totum prohibuit cum eo contrahi, praepositi loco non habetur, cum magis hic custodis sit loco quam institoris: ergo nec uendere mercem hic poterit nec modicum quid ex taberna.
But if he completely forbade contracts to be made with him, he is not considered to be in the position of an appointed manager, since he is rather in the position of a custodian than a manager; therefore, he can neither sell goods nor dispose of any minor item from the shop.
§14.3.11.7Si institoria recte actum est, tributoria ipso iure locum non habet: neque enim potest habere locum tributoria in merce dominica.
If the institorian action can be rightly brought, the tributorian action has no place by operation of law; for the tributorian action cannot apply to the owner's goods.
quod si non fuit institor dominicae mercis, tributoria superest actio.
But if he was not the manager of the owner's goods, the tributorian action remains available.
§14.3.11.8Si a seruo tuo operas uicarii eius conduxero et eum merci meae institorem fecero isque tibi mercem uendiderit, emptio est: nam cum dominus a seruo emit, est emptio, licet non sit dominus obligatus, usque adeo, ut etiam pro emptore et possidere et usucapere dominus possit:
If I lease from your slave the services of his deputy slave and make him the manager of my goods, and he sells goods to you, there is a sale; for when a master buys from his slave, there is a sale, even though the master is not under an obligation, to such an extent that the master can both possess and acquire ownership by prescription as a purchaser.